Separation REALLY is the last resort

Monday 27 April 2020

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In the recent case of C (A Child: Interim Separation) [2020] EWCA Civ 257, the Court of Appeal reinforced the core 5 principles that it had distilled in the case of Re: C (A Child) [2019] EWCA Civ 1998 and reiterated in an application for separation that...

“…the essential task for the judge was to decide whether the risk to [the child’s] physical safety was so great as to justify separation in circumstances where every other consideration pointed towards keeping mother and child together.

In this case, the local authority successfully applied for an interim care order as a result of the mother’s longstanding drug addiction (which had led to the need for one leg to be amputated and the use of a wheelchair), her chaotic lifestyle, and domestic abuse concerns. The child was placed with her mother in a residential unit.

In an interim report the unit noted that whilst the mother had maintained abstinence and had demonstrated good capability in relation to most practical tasks, she was resistant to advice and inconsistent in her approach to safety issues such as moving around with the child without the use of a sling or pram.

In January the mother fell out of her wheelchair whilst holding the child. As a result the unit gave notice and the local authority applied to the Court for authorisation for separation. The mother sought the child’s return to her care having identified an alternative residential placement.

The first instance Judge directed himself as to the test for interim separation and found that the test for interim removal was not made out. He concluded that the incident was purely accidental, the sling would not have removed all risk, and although serious injury might be caused, these were not likely or imminent risks. The Judge therefore approved the mother’s proposal and placed her and the child in an alternative unit.

The local authority, supported by the guardian, appealed the Judge’s decision on the grounds that: (a) the Judge’s conclusion was “perverse” and (b) the alternative residential unit did not provide adequate safeguards.

LJ Peter Jackson held on appeal that the arguments advanced were not persuasive, that the task to evaluate and balance factors was entrusted to the Judge, and unless his conclusions were shown to be wrong the Court would not interfere. The Court found no fault in the first instance Judge’s approach and dismissed the local authority’s appeal.

This case serves as a reminder that the Court of Appeal will only interfere in cases where the first instance Judge’s conclusion is wrong. It also highlights that the test for separation is of a high standard, that is only justified in cases, (quoting the first instance Judge), where...

“…the child's safety is at risk and, if so, removal is proportionate to the actual risks faced and in the knowledge of alternative arrangements which would not require separation”.

A word to the wise: (a) an application for separation should not be made unless and until all realistic available options have been explored and (b) the Court will not approve such an application unless it can be satisfied that there is no realistic alternative other than to order separation.  

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